HomeMy WebLinkAbout9D - News Racks in Right of Way
MEETING DATE:
AGENDA #:
PREPARED BY:
AGENDA ITEM:
DISCUSSION:
CITY COUNCIL AGENDA REPORT
JULY 2, 2001
9D
DONALD RYE, PLANNING DIRECTOR
CONSIDER APPROVAL OF REPORT CONCERNING NEWS
RACKS IN THE RIGHT-OF-WAY
History: Councilmembers have expressed some concern over the
unregulated placement of news racks in the right-of-way of public
streets in Prior Lake. The City Attorney has provided the Council with
a memorandum (copy attached) that describes some of the legal issues
involved in the regulation of news racks on public property. Staff has
been directed to prepare an ordinance for City Council consideration
on this issue. This report is the first step in achieving this objective.
The report requires Council direction regarding the specifics of the
ordinance.
Current Circumstances: Staff has conducted an inventory of news
racks located on the public right-of-way in the City. The inventory is
attached. As of Friday, June 22, th~re were 6 news racks located on
rights-of-way in the City. There are two more on Main A venue that
appear to be located just off the right-of-way on private property.
There are 2 boxes each at 2 locations and 1 box at 2 locations. The
boxes are either yellow or black. Only 1 of the boxes is located on a
sidewalk and this one is adjacent to a light pole and does not appear to
be interfering with pedestrian traffic. The remainder are located on
boulevards.
Issues: There are several issues related to the placement of news racks
on the right-of-way. The primary issues are pedestrian and traffic
safety and aesthetics. The unregulated placement of news racks can
impede pedestrian traffic and create traffic problems by blocking sight
lines at intersections and other critical locations. The variety of types
of news racks with differing types of materials, colors and
maintenance standards can result in visual blight in the community.
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In developing any regulation affecting speech, the City must be careful
to develop regulations that are the minimum necessary to achieve the
goals of the City. Several court cases have established tests that must
be met to insure the ordinance will withstand a challenge. These tests
are:
1. Is the ordinance content-neutral? That is, does the ordinance
regulate the message being transmitted or only the manner in
which it is distributed?
2. Does the ordinance advance a legitimate governmental
interest?
3. Does the ordinance draw narrowly defined standards?
4. Does the ordinance impose only reasonable time, place and
manner restrictions?
If all the answers to these questions are yes, the ordinance should be on
sound footing.
Communities around the country have attempted different methods of
regulating news racks with varying degrees of success. Some cities
tried to ban them completely. These ordinances were almost
unanimously found to be unconstitutional as an unreasonable
restriction on free speech. Other cities allowed them but reserved the
right to revoke the pem1its without cause. In still other cities, the
ordinance pennitted racks to be seized without a hearing. These
ordinances were also struck down. Still other ordinances were defeated
because there were no standards in the ordinance or because news
racks were treated differently than other facilities pennitted in the
right-of-way such as utility boxes.
The staff is seeking direction on two main questions about the news
rack ordinance. The first has to do with the fonnat of the ordinance.
The second question relates to the content of the ordinance.
QUESTION #1 : FORMAT
There are three altematives by which a news rack ordinance could be
adopted. The first is to adopt the ordinance as a freestanding section of
the City Code. One of the major advantages to this approach is that
the ordinance can be adopted more quickly, because it would not
require a public hearing before the Plam1ing Commission. The
ordinance could also be structured so that it applies to both private
property and right-of-way, to provide a permitting process, and other
administrative details. A disadvantage to this approach may be that it
would be more difficult to tie the regulation to Zoning District
boundaries. Staff would research just how such an ordinance could be
structured.
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The second approach is to adopt these regulations as part of the Zoning
Ordinance. The advantage to this approach is that the ordinance would
apply to private property. There is also a variance and appeals process
built into the Zoning Ordinance that would be applicable to news
racks. Such regulations could also potentially utilize a public review
process. The disadvantage in this approach is that adoption of the
ordinance would require a public hearing before the Planning
Commission. The Zoning Ordinance also does not address structures
within the right-of-way.
The third option is to adopt news rack regulations as part of the current
Right-of- W ay ordinance, which is also a freestanding section of the
City Code. This ordinance already has a permitting requirement and
process in place to deal with the placement of facilities in the right-of-
way. In addition, the amendment could be accomplished faster than
amending the Zoning Ordinance because it would not need to be
reviewed by the Plmming Commission at a public hearing. A
disadvantage to this approach is that the ordinance does not apply to
private property. As with the first option, it would be difficult to tie
the regulations to Zoning districts.
There is very little difference between the three approaches in terms of
enforcement and penalties. The enforcement of any of these
ordinances would be similar to the existing enforcement procedures.
Additionally, violations of any of these ordinances would constitute a
misdemeanor.
QUESTION #2: CONTENT
In addition to addressing the format of these regulations, it would be
helpful if the Councilmembers provided their perspective on content.
Any ordinance, regardless of format, will address the public health and
safety issues. These restrictions include restricting the location of
news racks from the snow storage area on public sidewalks,
prohibiting chaining the boxes to public property, prohibiting the
boxes from impeding access for maintenance and mail service, and
prohibiting boxes from the clear sight triangle at intersections.
However, there are other considerations, mostly aesthetic, that the
Council may wish to consider.
For example, would the Council want the staff to investigate the
possibility of "centralizing" the boxes in business zone? In other
words, the boxes would be in a news rack corral on public right-of-
way adjacent to strip malls or shopping areas. Another option might
be to restrict the boxes to business zones only and away from
residential districts of all types. Or, the Council may wish to allow the
boxes in multi-family residential areas because of the densities
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involved. Another question is whether the ordinance should attempt to
define the proper size of a news rack for safety reasons. Also, should a
permit be required for the placement of these boxes?
The issue of the extent of these regulations must be researched by
staff, in light of the many court cases. However, staff is asking the
Council to provide some direction as to their preference for these
regulations.
rnl1rlu<;;inl1' It is clear that the City may regulate the location and
aesthetic aspects of news racks to the extent both impact public health,
welfare and safety. What is less clear is the degree to which they may
be regulated. It is clear that the City cannot prohibit news racks in the
right-of-way. It is also clear that any regulation that is adopted cam10t
be so burdensome as to unreasonably restrict the placement of news
racks. It is possible, however, to craft an ordinance that deals with both
safety and aesthetics in a reasonable manner. Safety and aesthetics
have both been held to be legitimate governmental interests subject to
regulation.
The City Council has two alternatives:
1. Direct staff with respect to the format of these regulations.
2. Direct staff with respect to the content of these regulations.
Upon receipt of this direction, we expect to have a draft ordinance for
review in 45 days.
Motion to direct staf to prepare the desired format and content of the
ord1ce re tin ews racks
Frank B
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halleland lewis nilan
sipkins & johnson
Attorneys at Law/P .A.
600 Pillsbury Center South
220 South Sixth Street
Minneapolis. MN 55402-4501
Office: 612.338.1838 Fax: 612.338.7858
www.halleland.com
MEMORANDUM
TO:
Mayor
Council Members
City Manager
FROM:
Suesan Lea Pace
DATE:
February 19,2001
RE:
News Rack Regulations
Council Member Erickson has raised concerns about problems associated with the placement
of media, advertisement and news racks. Council Member Erickson has asked whether it is
permissible for the City to regulate news racks in the public right-of-way. Concern has been
expressed that the boxes produce safety and esthetic issues.
This memorandum examines the law regarding the regulation of news racks in the public right-
of-way. The City may not altogether ban commercial news racks from the public right-of-way.
However, like other forms of commercial speech, news racks may be regulated as to time,
place and manner, or "content-neutral" regulations, so as not to run afoul of the First
Amendment's guarantee of free speech.
1. Facts and Background
The City's streets are becoming littered with news racks. These racks could pose a variety of
problems, including safety issues, accessibility and community aesthetics. The City should
conduct an investigation and document the problems these racks are creating. Other cities
have reported similar types of problems as raised by Council Member Erickson.
For instance, motorists could cause safety problems if they pullover to the side of the road to
buy newspapers. Further, accessibility issues arise if access to the sidewalk or handicap ramps
is blocked due to a multitude of news racks.
Aesthetics is also a legitimate concern to the City. The racks may be garish, ill kept, and
targets for vandalism and graffiti.
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II. Issue
May the City regulate news racks in the public right-of-way without running afoul of the First
Amendment's protection of free speech?
III. Legal Analysis
Any regulation of commercial speech involves a balance between the City's interest in safety,
accessibility and community aesthetics against the publishers' concern for governmental
interference with their First Amendment right to freedom of speech and of the press and with
their right to market, distribute and sell their publications as an extension of these First
Amendment guarantees.
Two forms of news rack regulations exist: content-based and content-neutral. A content-
based restriction regulates news racks based on the type of newspaper, such as banning all
news racks of commercial newspapers, but not those of regular newspapers. A content-
neutral restriction regulates both "regular" and commercial newspapers in the same manner,
by regulating, for example, the number or size of the racks.
Liberty in circulating one's speech is as essential to the freedom as is liberty of publishing, since
publication without circulation would be of little value. The Supreme Court has pointed out
that freedom of speech is indispensable to the discovery and spread of political truth and that
the best test of truth is the power of the thought to get itself accepted in the competition of
the market; also, the Court has said, freedom of speech protects the individual's interest in
self-expression. Thus, the freedoms of speech and press assured by state and federal
constitutions are as much infringed by an improper interference with distribution as by an
improper interference with publication. The privilege of distributing may not be withdrawn,
even if it creates the minor nuisance for a community of cleaning litter from its streets.
Therefore, a content-based restriction on news racks is unconstitutional.' The City may,
however, curb news racks with a "content-neutral" regulation. For example, the City may
1 Commercial speech receives a limited form of First Amendment protection so long as it concerns a
lawful activity and is not misleading or fraudulent; once it is determined that the First Amendment
applies to the particular kind of commercial speech at issue, then such speech may be restricted only if
the government's interest in doing so is substantial, the restrictions directly advance the government's
asserted interest, and the restrictions are no more extensive than necessary to serve that interest In
order to determine whether a government restriction on commercial speech is permissible, a court
examines four factors: (1) whether the expression concerns a lawful activity and is not misleading; (2)
whether the government's interest is substantial; (3) whether the restriction directly serves the asserted
interest; and (4) whether the restriction is no more extensive than necessary.
Previous attempts to formulate a content-based restriction on free speech have run afoul of the First
Amendment See, e.g., City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993) (invalidating a ban
on all commercial news racks, but not other news racks); City of Lakewood v. Plain Dealer Publishing
Co., 486 U.S. 750 (1988) (invalidating a regulation permitting the Mayor to determine unilaterally which
newspapers should be allowed to be sold on public property); Young v. City of Rosevi/le, 78 F. Supp.2d
970 (D. Minn. 1999) (invalidating a regulation that prohibited the displaying of a flag, another
recognized form of speech, for commercial purposes).
require periodic licensing of news racks on public property and may even have special licensing
procedures for conduct commonly associated with such expression. First, however, the city
must to establish neutral criteria to ensure that its licensing decision is not based on the
content or viewpoint of the speech being considered.
The key features of a content neutral ordinance are:
· Limitation of the size of the racks;
. Limitation on the placement of the racks;
· Limitation on the number of racks;
· Maintenance standards; and
. Required notification of the dispenser's location to City.
Each of these restrictions is content neutral; they are equally applicable to both "regular"
newspapers and commercial newspapers.
CONCLUSION
I have reviewed several ordinances from around Minnesota, and I do not recommend any as a
model ordinance. I did locate, however, a model ordinance from IMLO; I propose the City use
it as a model, with substantial modification so as not to be overly burdensome. Further, I
recommend that IMLO's model ordinance's references to "obscene" materials be remove.
Regulation of "obscene" materials moves closer to "content based" regulations, which are
subject to a court's "strict scrutiny." This issue can be raised at a later date, if needed.
I request that the City provide further direction on the manner in which it wishes to regulate
news racks, through licensing or a permitting process.
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Site review of news racks on ri2ht-of-way
1) In front of Flowers Naturally- Employment Weekly- Black box mounted on a plate
located on the boulevard- affixed to ground- not on sidewalk and adjacent to mailbox
2) Across from Flowers Naturally- Employment News-Yellow box on sidewalk adjacent
to light pole- does not appear to be obstructing sidewalk
3) County Market entrance- Employment Weekly and Jobs/Careers- yellow and black
boxes- adjacent to reflector post at end of paved part of ROW- no sidewalk at this
location- no good place for cars to stop here to get a paper
4) Snyders- Employment Weekly and Employment News- black and yellow boxes on
ROW next to curb- no sidewalk here- cars must stop in street or in Snyders parking
lot
5) In front of Joes Restaurant on Main Avenue- Star Tribune and Employment Weekly-
green and black boxes-next to building- not on sidewalk- probably not in ROW
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